Federal Judges Still Finding Their Way in Post-'Booker' Sentencing Landscape

Federal Judges Still Finding Their Way on Post-'Booker' Sentencing

Mary Pat Gallagher

New Jersey Law Journal

Five years after the Supreme Court held that the federal sentencing guidelines are no longer binding but merely advisory, judges for the most part continue to follow them, though there is an ever-growing divergence, according to the most recent federal sentencing statistics.

But judges are still struggling to grasp the degree of discretion the Court handed back to them in U.S. v. Booker, 543 U.S. 220 (2005), which held that the guidelines violate the Sixth Amendment right to a jury because they required harsher sentences based on facts found by judges rather than jurors.

Instead of tossing the guidelines, the Booker Court said judges must take them into account, along with other factors listed in the sentencing law, 18 U.S.C. 3553(a), including the nature and circumstances of the offense.

There has been an incremental trend away from strict adherence to the guidelines. The statistics, released April 9, show that for the 2009 fiscal year, which ended Sept. 30, 2009, 56.8 percent of sentences were inside the guidelines, down from 61.7 for 2006, the first year after Booker.

The percentage also fell in both of the intervening years too, to 60.8 percent in 2007 and 59.4 in 2008.

Though nationally more than half of sentences are within the guidelines, the rate varies widely from district to district -- from a low of 27.8 percent in the District of Arizona to a high of 92.3 percent in the District for the Northern Mariana Islands, both part of the 9th Circuit. The second lowest and highest rates of fealty to the guidelines were the District of Vermont's 30.8 percent and the Southern District of Mississippi's 80.7 percent.

Circuit averages varied from 39.4 in the District of Columbia Circuit to 71.7 percent in the 5th Circuit.

In New Jersey, the proportion of guideline sentences in 2009 fell below half for the first time, 46.4, versus 50.6 in 2006. The 3rd Circuit averaged 46 percent with the lowest rate the Eastern District of Pennsylvania's 37.9 and the highest, the 68.6 in the Virgin Islands.

When judges opt not to stay within the guidelines, they are far more likely to go below them. Nationally, lesser sentences were meted out in 41.2 percent of cases, versus only 2 percent where they were greater.

In New Jersey, the corresponding figures were 53 percent and .5 percent for 886 sentencings in 2009.

Judges across the country were most likely to stick with the guidelines for simple possession drug cases (90 percent), burglaries (83.3) and prison offenses (70.8). They were least inclined to do so where the offense was kidnapping or hostage taking (31.7), national defense (33.3) and bribery (35.7).

Since Booker, the Court has held that when an appeals court reviews a sentence, it is limited to deciding only whether it was reasonable.

A sentencing court must fully explain its reasons for sizable downward departures, as a 3rd Circuit ruling on Tuesday shows.

In U.S. v. Merced, No. 09-1844, the court vacated a drug sentence more than 10 years below the guidelines. Hector Merced, whose plea to felony drug charges and prior criminal history resulted in a guideline range of 188 to 235 months, had drawn only a 60-month jail term.

The court reversed not on substantive grounds but because U.S. District Judge William Martini Jr. failed to explain why he didn't sentence Merced like a career criminal, nor did he address whether the extreme downward departure created a risk of unwarranted disparities between Merced and other recidivist crack cocaine dealers.

At sentencing on Feb. 24, 2009, Martini called Merced a "street level" criminal rather than a big-time dealer, adding, "I kind of reserve career offender status for violent, significant drug deals, that type of thing, even though the guidelines may advise that it's appropriate."

That comment seemed to indicate a personal policy disagreement with the guidelines which Martini was required to explain, but his statement of reasons for the sentence did not mention his disagreement with the guidelines treatment of career offenders or the disparity issue, Judge D. Brooks Smith wrote for the panel, joined by Paul Michel, chief judge of the Federal Circuit.

They sent the case back to Martini to explain if a policy disagreement was behind the lower sentence and if so, to provide justification. He must also address the disparity issue.

Concurring judge Thomas Ambro agreed with the result but thought that the majority also should have resolved the question of whether judges are "free to vary from the career offender Guideline based on a categorical policy disagreement," as other circuits have held.

Douglas Berman, a law professor from Ohio State University's Moritz College of Law and the author of the Sentencing Law and Policy blog, says the Supreme Court has consistently upheld district judges' exercise of their post-Booker sentencing discretion.

Downward departures tend to be minor and seldom appealed by prosecutors, he notes. The better a judge "can explain and justify why he's doing what he's doing, the more discretion he has," Berman adds.